Business Law Chapter 8 Excludes Identifications That Derive From Impermissibly Suggestive

CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,

FOURTEENTH EDITION

BY JACQUELINE R. KANOVITZ

INSTRUCTOR’S GUIDE

Note: Cases that appear in Part II of the textbook are noted in boldface.

Chapter 8

Right to Counsel

Objectives

This chapter covers the Sixth Amendment right to counsel and constitutional restrictions on pretrial witness

identification. There are three segments. The first segment covers the main features of the Sixth Amendment

right to counsel. The second discusses the restrictions that the Sixth Amendment right to counsel imposes

on the police. The last segment deals with Fourth, Fifth, Sixth, and Fourteenth Amendment restrictions on

pretrial witness identification.

After completing this chapter, the student should emerge with a working knowledge of:

1. The four main features of the Sixth Amendment right to counsel, namely: (1) the right of indigent

2. Sixth Amendment restrictions on the conduct of the police, including:

a. Pretrial encounters during which the accused is entitled to have a lawyer present;

3. Constitutional restrictions on pretrial witness identification imposed by:

Discussion Outline

[PowerPoint Slides 1 and 2 contain book and chapter title information.]

PowerPoint Slide 3. Introduction

PowerPoint Slide 4. Right to Counsel

§ 8.1 Overview of the Sixth Amendment Right to Counsel

A. The right to counsel performs two functions that are crucial to our adversary system of criminal justice:

1. It reduces the risk that innocent people will be convicted because they lack the legal skills necessary

to put forth an effective defense.

2. It aids assertion of the other constitutional rights developed for the protection of criminal

defendants.

PowerPoint Slide 5. Right to Court-Appointed Counsel

• Powell v. Alabama:

§ 8.2 The Indigent Person’s Right to Assistance of Counsel

A. The right of indigent defendants to assistance of counsel has developed in four stages.

1. For the first 150 years, the Sixth Amendment right to counsel was interpreted to mean only that

2. In Powell v. Alabama, the Supreme Court ruled that state courts were required to provide court–

appointed counsel for indigent criminal defendants on trial for their life who were illiterate or

3. Six years later, the Supreme Court ruled that federal courts were required to provide court–

4. In Gideon v. Wainwright, the Supreme Court ruled that the Sixth Amendment right to counsel is

applicable to the states through incorporation into the Fourteenth Amendment and obligates state

courts to provide court-appointed counsel to indigent criminal defendants charged with a felony,

without regard to whether they are illiterate or otherwise disadvantaged in representing

themselves.

▪ Gideon v. Wainwright (Part II). An indigent, but not illiterate, defendant facing felony

charges asked a state trial court to appoint counsel to defend him. The court declined because

B. Although the Sixth Amendment declares that the accused shall enjoy the right to counsel “in all

criminal prosecutions,” the Supreme Court has carved out an exception for misdemeanor prosecutions.

The Sixth Amendment does not require court-appointed counsel for defendants facing misdemeanor

PowerPoint Slide 6. Inclusion of Critical Stages

• When the Sixth Amendment was adopted, the trial was the only

adversarial confrontation between the government and the

accused.

PowerPoint Slide7. Critical Stages

• Characteristics:

o must take place after criminal prosecution has commenced

o involve adversarial confrontation between the government

§ 8.3 The Right to Assistance of Counsel in Non-Trial Proceedings: Critical Stages of the

Prosecution

A. The right to counsel originally meant the right to have counsel present only at the trial. Supreme Court

1. It must take place after initiation of prosecution.

a. This limitation stems from the language of the Sixth Amendment, which guarantees the

“accused” the right to assistance of counsel in “all criminal prosecutions.” A suspect does

not become an “accused” until a prosecution has been initiated. This is when the Sixth

2. It must involve an adversarial confrontation between the accused and the government.

3. The encounter must be of such a nature that important rights might be lost or a fair trial jeopardized

if the defendant is forced to proceed without counsel being present. Defendants, for example, are

a. The following have been recognized as critical stage events:

i. Court appearances: preliminary hearings, bail hearings, arraignments, plea hearings, and

sentencing hearings.

ii. Pretrial investigative encounters: interrogations, lineups, and showups conducted after

B. The Sixth Amendment right to counsel also applies to post-conviction sentencing proceedings and to

the defendant’s first appeal of the conviction or sentence, but not subsequent appeals or habeas corpus

proceedings.

PowerPoint Slide 8. Right to Self-Representation

• Sixth Amendment guarantees right to waive assistance of counsel

§ 8.4 The Defendant’s Right to Self-Representation

A. The Sixth Amendment also guarantees criminal defendants the opposite right—the right to waive

assistance of counsel and engage in self-representation. Before accepting a waiver, the trial judge has

the obligation to make sure that the defendant is mentally competent, is advised of his rights, and

understands the dangers of self-representation.

PowerPoint Slide 9. Ineffective Counsel

• Criminal defendants are entitled to reasonably effective

§ 8.5 Ineffective Assistance of Counsel

A. The Sixth Amendment guarantees the right to effective assistance of counsel.

1. This guarantee applies both to retained and appointed counsel.

2. To secure the reversal of a conviction based on ineffective assistance of counsel, the defendant

must demonstrate that: (1) counsel’s representation was deficient in some particular, and (2) there

is a reasonable probability that the outcome of the proceedings would have been different (i.e.,

▪ Hinton v. Alabama (Part II). Hinton was charged with two counts of capital murder

committed during after-hours armed robberies of two different restaurants. The testimony of a

ballistics expert at the State’s Department of Forensic Sciences that the bullets recovered from

the two crime scenes had been fired from the same gun—the revolver found at Hinton’s

house—was the only evidence directly linking him to the crimes. Hinton’s attorney knew that

PowerPoint Slide 10. Restrictions on Police Conduct

The Sixth Amendment right to counsel places two restrictions on the

police:

1. Police must secure a valid waiver of the right to counsel or see to it

2. Police must abstain from improper interference with the attorney-

client relationship.

§ 8.6 Sixth Amendment Restrictions on the Conduct of the Police

A. The defendant has a Sixth Amendment right to have counsel present at lineups, showups, and

interrogations conducted after adversary judicial proceedings have been commenced.

C. The degree to which police must permit counsel to participate depends on the procedure.

1. During lineups and showups, counsel is entitled to observe, but nothing more.

D. Once adversary judicial proceedings are initiated, the Sixth Amendment right to counsel imposes a

continuing duty on the police to abstain from intruding into the confidentiality of the attorney-client

relationship. Information uncovered by deliberate intrusions into the attorney-client relationship will

be suppressed. Further, if the government’s activity is particularly egregious and causes irreparable

prejudice to the defendant’s ability to defend, the court may even dismiss the charges.

▪ State v. Quattlebaum (Part II). Police and a prosecutor secretly audio- and videotaped defendant’s

PowerPoint Slide 11. Uses of Pretrial Identification Procedures

• Photographic identification:

o Used to narrow the focus of an investigation when

witness and the police are uncertain of the offender’s

identity

• Showup identification:

§ 8.7 Pretrial Identification Procedures

A. Police use three pretrial identification procedures:

1. Photographic identifications—the witness is shown pictures of the suspect, either singly or as part

2. Showups—the suspect is presented to witness one-on-one for identification. This method of

3. Lineups—the suspect is exhibited, along with stand-ins who possess similar physical traits, to the

B. All three witness identification procedures, when properly conducted, generate evidence admissible at

the trial.

C. Objections to the admissibility of pretrial identification testimony may be raised under four separate

constitutional provisions—the Fourth Amendment search and seizure clause, the Fifth and Fourteenth

Amendment due process clauses, and the Sixth Amendment right to counsel.

PowerPoint Slide 12. Grounds for Challenging Pretrial Identification

Evidence of positive eyewitness identification can be challenged

under:

• Fourth Amendment exclusionary rule

§ 8.8 Fourth Amendment Requirements for Pretrial Identification

A. Evidence of a positive pretrial identification will be suppressed if it derives from an illegal arrest or

detention. Illustration: Police arrest Sam without probable cause and put him in a lineup, during which

the victim identifies him. The victim’s testimony concerning the line-up identification will be

suppressed under the Fourth Amendment exclusionary rule.

PowerPoint Slide 13. Protection against Unreliable Witness Identification Testimony

• Faulty eyewitness identifications are the major cause of

§ 8.9 Due Process Requirements for Pretrial Identification Procedures

A. The due process clause forbids admission of pretrial identification testimony obtained under

1. Impermissibly suggestive procedure. Impermissible suggestiveness can result either because the

police: (1) select an identification procedure (usually a showup) that is unnecessarily suggestive

under the circumstances, or (2) conduct an appropriate procedure in an unnecessarily suggestive

manner.

a. Showups are the most inherently suggestive of the three identification procedures because

b. Police should not use a showup unless: (1) the showup takes place close in time to the crime

and (2) police have a strong need for a quick confirmation that they have apprehended the

right person.

▪ Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967),

c. Unnecessary suggestiveness can also be injected by the manner in which a witness

identification procedure is conducted. Police should avoid the following practices during

2. Substantial risk of misidentification. The second prong of the test requires the court to examine

the surrounding circumstances to determine whether the impermissible suggestiveness of the

identification procedure created a substantial risk of a mistaken identification. Flawed procedures

do not necessarily mean that a witness’s identification is unreliable. If the court concludes that the

testimony is reliable, it will be admitted despite the suggestiveness of the procedures. Courts

▪ United States v. Downs (Part II). Lineup in which the defendant was only person without a

3. A witness who has been exposed to an impermissibly suggestive identification procedure under

circumstances that create a substantial risk of misidentification will also be barred from making

an identification of the defendant in the courtroom during the trial unless the judge concludes that

4. The following cases illustrate application of the factors that courts consider in deciding whether

to admit evidence of an out-of-court identification obtained through impermissibly suggestive

identification procedures. The cases can be used as classroom discussion questions by asking

students the following questions about each case: (1) Was the identification procedure

impermissibly suggestive? Yes, in all three cases. (2) Did the unnecessary suggestiveness create

a substantial risk of misidentification? No in the first two cases, but yes in the third case.

▪ Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1973). Biggers was convicted

▪ Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 224, 353 L. Ed. 2d 14 (1977). An undercover

police officer purchased drugs from a dealer and shortly thereafter described him to a second

police officer. After hearing the description, the second officer suspected the defendant and

left a picture of the defendant, which was pulled from police files, in the undercover officer’s

▪ Foster v. California, 394 U.S. 440, 442, 89 S. Ct. 1127, 1128, 22 L. Ed. 2d 402 (1969). A

Western Union office was held up at gunpoint. The night manager, who was the only witness

to the crime, failed to identify Foster at the first lineup. There were two men in the lineup

besides Foster. Foster was close to six feet tall, while the other two were five feet, five or six

inches tall. He alone wore a leather jacket, which was part of the witness’s description of the

§ 8.10 Right to Counsel during Pretrial Identification Procedures

A. The Sixth Amendment right to counsel bars admission of evidence of pretrial identifications made

during a critical stage lineup or showup unless counsel is present or the defendant makes a valid waiver.

1. The “critical stage” concept encompasses lineups and showups conducted after the initiation of

adversary criminal proceedings. Counsel’s presence is needed during lineups and showups so that

2. The “critical stage” concept does not apply to:

a. Lineups and showups conducted before the initiation of adversary judicial proceedings.

b. Photographic identification procedures, whether conducted before or after prosecution is

c. You may wish to add that, although the taking of fingerprints, mug shots, handwriting

samples, hair samples, voice samples, blood samples, semen samples, and the like all involve

actual confrontations between the government and the defendant, they are not considered

B. Before conducting a critical stage lineup or showup, police must warn the defendant of the right to

counsel and secure a waiver or wait until counsel is present.

C. A witness who makes a pretrial identification that is inadmissible on Sixth Amendment grounds will

Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)

1. What two functions does the Sixth Amendment right to counsel serve in our adversary system of

criminal justice? (§8.1)

2. What is name of the first case that recognized a limited right to court-appointed counsel? What is the

3. What three characteristics must pre- or post-trial events have to be considered “critical stages” in a

criminal prosecution? (§8.3(A))

4. What four events signal the initiation of a criminal prosecution? (§8.10(A))

5. List all pre- and post-trial judicial proceedings and investigative encounters regarded as critical stages

in a criminal prosecution. (§8.3)

8. What two prerequisites must a defendant establish to have his or her conviction overturned on the basis

of ineffective assistance of counsel? (§8.5)

9. What two additional restrictions does the Sixth Amendment place on the conduct of police after

criminal proceedings are initiated? What do police have to do to secure a valid waiver of the Sixth

Amendment right to counsel? (§8.6)

10. List the three procedures police use to for witness identification and describe the purpose for which

each is used. (§8.7)

*12. Which of the following witness identifications is subject to suppression under the Fourth Amendment

exclusionary rule? (§8.7)

a. Police arrest Sam without probable cause and compel him to participate in a lineup. An eyewitness

identifies him.

b. Police detain Sam for investigation without reasonable suspicion and take him to the crime scene

for a showup identification where an eyewitness identifies him.

*13.What two-part test does the process clause impose for deciding when testimony about a positive pretrial

identification is too unreliable to be used as evidence? (§8.9)

*14.Which identification procedures can be challenged under this test? (§8.9)

15. Which identification procedure is the most inherently suggestive? When is it appropriate for police to

use this procedure? (§8.9(A))

16. Give examples of impermissibly suggestive conduct that police should avoid during lineups. Showups?

Photographic identifications? (§8.9)

*17.The fact that a witness has been exposed to an impermissibly suggestive identification procedure does

18. When does a suspect have a Sixth Amendment right to have counsel present during witness

identification proceedings? Be precise both as to the procedures covered and the stage in the

prosecution for this protection to apply. (§8.10)

ANSWERS:

12. Suppression is required under the Fourth Amendment exclusionary rule in all four examples. Sam was

13. The due process clause prohibits admission of testimony about pretrial identifications obtained under

14. The due process clause prohibition on unreliable testimony applies to all three identification